Opinion
04-13-2016
The PEOPLE, etc., respondent, v. Gregory ANDERSON, appellant.
Philip H. Schnabel, Chester, NY, for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz and Robert Middlemiss of counsel), for respondent.
Philip H. Schnabel, Chester, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz and Robert Middlemiss of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered October 1, 2014, convicting him of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea was not voluntarily entered is unpreserved for appellate review because he did not move to vacate his plea or otherwise raise this issue before the County Court (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Yanez–Mejia, 133 A.D.3d 801, 801, 19 N.Y.S.3d 176 ; People v. Jackson, 114 A.D.3d 807, 807, 979 N.Y.S.2d 704 ). Moreover, contrary to the defendant's contention, the exception to the preservation requirement does not apply here because the plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Bennett, 122 A.D.3d 871, 872, 996 N.Y.S.2d 369 ; People v. Lujan, 114 A.D.3d 963, 964, 980 N.Y.S.2d 815 ; People v. Nilsen, 114 A.D.3d 706, 706, 979 N.Y.S.2d 668 ). In any event, the claim is meritless. The record of the plea proceedings demonstrates that the defendant's plea was knowing, voluntary, and intelligent (see People v. Yanez–Mejia, 133 A.D.3d 801, 19 N.Y.S.3d 176 ; People v. Statini, 117 A.D.3d 1089, 1090, 986 N.Y.S.2d 624 ). The defendant's conclusory allegation that he was confused at the time of the plea is belied by his lucid and appropriate responses during the plea allocution (see People v. Miranda, 67 A.D.3d 709, 710, 886 N.Y.S.2d 890 ; People v. Wager, 34 A.D.3d 505, 505, 823 N.Y.S.2d 522 ; People v. Matthews, 21 A.D.3d 499, 500, 800 N.Y.S.2d 722 ).
The defendant's challenge to the purported forfeiture agreement that he entered into with the office of the District Attorney is not reviewable on this appeal, since the record does not establish that the forfeiture agreement was made a part of the judgment of conviction (see Penal Law § 60.30 ; compare People v. Abruzzese, 30 A.D.3d 219, 816 N.Y.S.2d 464 with People v. Detres–Perez, 127 A.D.3d 535, 535–536, 5 N.Y.S.3d 729 ; see also People v. Burgos, 129 A.D.3d 627, 627, 13 N.Y.S.3d 350 ; People v. Carmichael, 123 A.D.3d 1053, 1053, 999 N.Y.S.2d 476 ). Instead, any forfeiture was based on an attempted settlement of a potential, separate civil proceeding, which would be governed by the CPLR (see CPLR 1311[1] ; People v. Carmichael, 123 A.D.3d at 1053, 999 N.Y.S.2d 476 ; People v. Abruzzese, 30 A.D.3d at 219, 816 N.Y.S.2d 464 ).The defendant's remaining contention is without merit.
CHAMBERS, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.